Queensland Drug and Alcohol Court

Article by Erin Mitchell, Senior Criminal Lawyer

Queensland Drug and Alcohol Court

So many of our clients, and their families, ask if there is some type of penalty option where a person can be ordered to attend a rehab facility instead of jail and for a number of years, the answer has been “no”.  Today, 29 January 2019, marks one year since the Queensland Drug and Alcohol Court commenced in Brisbane. As criminal defence lawyers, we were relieved to see such an important feature of our criminal justice system re-established.

The Drug and Alcohol Court QLD has a focus on assisting those persons who commit crimes whilst suffering a severe substance use disorder to address their substance abuse issues by supervising them as they undertake treatment to address not only their drug/alcohol dependency issues, but also their criminal offending. It provides an alternative to sending someone to prison.

Our country has a significant drug problem and it is contributing to the increase in drug offences. But sending an addict to jail doesn’t necessarily stop them offending – it is the substance abuse issues that contribute to their offending behaviour that need to be addressed if crime rates are to be reduced.

“The Drug and Alcohol Court seeks to enhance community safety through the rehabilitation of offenders with entrenched drug and/or alcohol use issues and will include access to drug and alcohol treatment services, regular court hearings to monitor participants’ progress, regular and random drug and alcohol testing, and intensive supervision of participants”.[1]

The Drug and Alcohol Court is based in the Brisbane Magistrates Court (on George Street). There is a specific Magistrate who presides in the Court and gets to know each of the defendants, working with a team to support them through the program.

What matters can be dealt with in the Queensland Drug and Alcohol Court?

• A summary offence; or
• An indictable offence that may be dealt with summarily; or
• An indictable offence that usually must be committed to the higher courts, but can be dealt with summarily pursuant to s13A of the Drugs Misuse Act 1986.

Please note if a person is charged with a sexual assault offence, their matter cannot be dealt with in the Drug and Alcohol Court.

For more information as to whether your charges fall into one of these categories, please give us a call on (07) 5532 3133 or (07) 3221 4999.

Who can apply to the Drug and Alcohol Court?

For a person’s matter to be referred to the Drug and Alcohol Court, they must meet certain criteria.

They must:

• be an adult who can be sentenced under the Penalties and Sentences Act 1992 (Qld); and
• intend to enter a plea of guilty or have already entered a plea of guilty; and
• admit that they have a serious drug/ alcohol problem which has contributed to their offending.

Unfortunately, at this stage, the defendant must also live in the Brisbane Magistrate Court District boundary to be eligible to apply for their matter to be dealt with in the Drug and Alcohol Court.

You can check the jurisdiction map at https://www.courts.qld.gov.au/__data/assets/pdf_file/0003/551478/daac-map-brisbane-district-boundary.pdf

It is hoped that the Court will be expanded once the model has been evaluated and refined. It may be a few years before we see this opportunity expand to regional areas.

Finally, the defendant must:

• be facing a sentence of imprisonment of up to four years;
• not be serving a term of imprisonment in a corrective services facility (this shouldn’t be mistaken with having not yet obtained bail);
• not be subject to a parole order; and
• not be subject to a cancelled parole order where they are required to serve the unexpired period of imprisonment.

 

How do I get my matter into the Drug and Alcohol Court?

Step 1: Referral Form

Step 1 is to complete the Drug and Alcohol Court Referral Form – which is used to assess a person’s eligibility to be referred to the Drug and Alcohol Court.

There are a number of people who can initiate the referral:

• your lawyer (whether it be a private, ATSILS or legal aid lawyer);
• the duty lawyer;
• the prosecutor or any member of Queensland Police Service;
• the Magistrate;
• a Court Link Case Manager;
• the Mental Health Liaison Officer;
• the Queensland Integrated Court Referrals (QICR) Facilitator;
• treatment or support service providers;
• a family member or friend of the defendant; or
• the defendant themselves.

The form is then provided to the Magistrate at your mention (in the normal courts). Whilst there is nothing to stop you making an application after your matter has already commenced, it is best if the referral can be made sooner rather than later.

Once the Magistrate receives the Referral Form and considers a person eligible, the Magistrate then completes the Referral Form and adjourns the court proceedings to the Drug and Alcohol Court for an eligibility hearing and a referral for an eligibility screening.

Step 2: Eligibility Screening

Once a matter has been referred to the Drug and Alcohol Court, members of the “Review Team” will conduct an eligibility screening. This assists the court in determining whether a Treatment Order could be made for the defendant.

The Review Team consists of:

• an Aboriginal and Torres Strait Islander Cultural Liaison Officer;
• lawyers from Legal Aid;
• Queensland Corrective Services officers;
• Queensland Health clinicians;
• Prosecutors from Queensland Police Service.

The Review Team will complete the screening process and provide the Drug and Alcohol Court with an Eligibility Screening Form for their consideration at the next court date.

The first mention in the Drug and Alcohol Court will be an ‘Eligibility Hearing’, where the Court considers the report provided by the Review Team and all other relevant matters, including any submissions made by the parties. The Magistrate will then make a determination as to whether the defendant is eligible to receive a Drug and Alcohol Treatment Order.

If a person is not eligible, the Magistrate can refer the matter back to the Magistrates Court or they can proceed to sentence the defendant according to the usual laws.

If a person is eligible, the Magistrate will complete the Eligibility Screening Form and adjourn the matter for a suitability hearing in approximately 5 weeks’ time and order that the Review Team prepare a Suitability Assessment Report prior to that hearing.

Step 3: Suitability Assessment Report

In those next few weeks before the Suitability Hearing, the Review Team will meet with the defendant and conduct a Suitability Assessment and prepare a Suitability Assessment Report. This report is prepared by the various members of the review team (Queensland Health, Queensland Police and Queensland Corrective Services) and is designed to assist the Magistrate in determining whether the defendant is suitable to be sentenced to a Treatment Order.

The Report will be completed within 28 days and then provided to the Court, prosecutor and the defendant’s legal representative (or the defendant themselves) so that they consider its contents prior to the Suitability Hearing.

At the Suitability Hearing, the Magistrate will consider that report along with submissions from any of the parties and other relevant facts or circumstances before determining if the person is a suitable person to receive a Drug and Alcohol Treatment Order.

It is important that to have representation at these hearings as some of the relevant parties may have conflicting views about whether or not a person is suitable and if they wish to receive a Drug and Alcohol Treatment Order, they should have some arguing on their behalf to give them the best possible chance.

If a person is deemed unsuitable following the hearing, again, their matter can be adjourned back the Magistrates Court or the Drug and Alcohol Court Magistrate can proceed to sentence them according to the usual laws.

However, if the person was charged with one of the following offences (indictable matters than can be dealt with summarily only if a treatment order is being sought) then the Drug and Alcohol Court Magistrate will commit the defendant to the District Court for sentence:

• supply a dangerous drugs – schedule 1 drug (non-aggravated supply);
• supply a dangerous drugs – schedule 2 drug (supply to a minor but the minor is over 16 years old);
• supply a dangerous drugs – schedule 2 drug (supply to an intellectually impaired person);
• supply a dangerous drugs – schedule 2 drug (supply to a person within an educational institution);
• supply a dangerous drugs – schedule 2 drug (supply to a person within a correctional facility); or
• supply a dangerous drugs – schedule 2 drug (supply to a person who doesn’t know they are being supplied with the thing);
• supply a dangerous drugs – schedule 2 drug (non-aggravated supply);
• producing a dangerous drug – schedule 1 drug – in excess of schedule 3 amount but less than schedule 4 amount, but only if the judge is satisfied the person who committed the offence was a drug dependent person;
• producing a dangerous drug – schedule 1 drug (not more than schedule 3 amount);
• producing a dangerous drug – schedule 2 drug – in excess of schedule 3 amount;
• producing a dangerous drug – schedule 2 drug (not more than schedule 3 amount);
• possession of a dangerous drug – schedule 1 – in excess of schedule 3 amount but less than schedule 4 amount, but only if the judge is satisfied the person who committed the offence was a drug dependent person and it was for a commercial purpose; or
• possession of a dangerous drug – schedule 2 drug – in excess of schedule 3 amount and it was for a commercial purpose.

If deemed suitable at the hearing, the matter is likely to be adjourned one further time for the sentence hearing.

Step 4: Sentence Hearing

At the sentence hearing, the Magistrate will have already determined a treatment order can be made and as long as the defendant consents to the order being made, the Court can impose a Treatment Order as the appropriate penalty. Of course, like any sentence hearing, before the Magistrate determines the appropriate penalty, they will need to hear the facts of the charges as well as all the aggravating and mitigating features of the particular case and we as your lawyers can ensure that all such matters are brought to the Court’s attention to ensure the best possible outcome.

What is a Treatment Order?

A treatment order is the penalty that is imposed upon a defendant whose matter proceeds to sentence in the Drug and Alcohol Court.

It is made up of two components:

• the custodial part; and
• the rehabilitation part.

Custodial Part Up to four years imprisonment wholly suspended with an operational period of at least two years and not more than five years
Rehabilitation Part Two years unless extended or cancelled by the court
Core Conditions	Treatment Program

 

The custodial part involves a sentence of imprisonment of up to four years that is wholly suspended while the offender completes the treatment program. For the duration of the operational period (which must be between 2 and 5 years), the defendant must not commit another offence if they wish to avoid being dealt with under the relevant legislation.

The rehabilitation part is two years long and includes core conditions and a treatment program (where the conditions will vary according to each case).

The core conditions are:

• That the defendant must not commit another offence; and
• Must report to a review team member for the treatment order at the places/times directed; and
• Must receive visits from an authorised corrective services officer / review team member at times directed; and
• Must notify authorised corrective services officer/ review team member about any change of residence or employment within 2 business days after the change happens;
• Must not leave Queensland without permission of the Court; and
• Must comply with any other reasonable direction of an authorised corrective services officer or review team member.

The treatment order will state the length of time the defendant has to complete the treatment program (not more than 2 years) and will also include conditions or requirements that the Court considered necessary to achieve the purpose of the treatment order.

The treatment program may include conditions that require the defendant to:

• Submit to medical, psychiatric or psychological treatment relevant to their rehabilitation;
• Submit to detoxification at a stated facility that isn’t a corrective services facility;
• Participate in counselling/programs relevant to their rehabilitation;
• Attend meetings with a review team member for the treatment order;
• Participate in vocational, educational or employment programs or courses;
• Submit to alcohol or other drug testing;
• Wear a device that detects alcohol/drug usage;
• Install a device/equipment at my place of residence;
• Reside at a stated place for a stated period.

The Court may cancel whole or part of the rehabilitation part of the treatment order if the court is satisfied that the offender has complied or substantially complied with the treatment order and continuation of the rehabilitation part, or what is left of the rehabilitation part, is not necessary to achieve the purposes of the treatment order.

The Court can also vary the rehabilitation part of the treatment order and a defendant can also apply to amend the order themselves.

Does a treatment order actually work?

A treatment order is designed to assist defendants facing serious substance abuse issues to get their life back on track. In order to be successful, you will need to do everything the Court tells you to do – that includes attending treatment, regular court appearances and regular drug and alcohol testing.

There is significant research across the world to support the use of drug courts. This Court was formed after giving consideration to Queensland’s former drug court and drug courts in other jurisdictions across Australia and the world, where reduced re-offending and reduced drug use were achieved by defendants who completed the program.

If I have to go to court regularly for the next two years, does that mean I have to pay a lawyer for the next two years?

No. Practitioners from Legal Aid Queensland’s Drug and Alcohol Court team will represent all participants sentenced to a Treatment Order for the period of that order.

What happens if I break my Treatment Order?

The Drug and Alcohol Court understands things may be very difficult for those persons trying to beat a drug or alcohol addiction. The Magistrate works with the participants to discuss any breach and gain an understanding as to why a person has broken the order.

There are a variety of ways a person can be dealt with in relation to breaking the order, and much will depend on the nature of the breach – whether it was a failure to attend an appointment or whether it was a new offence, etc and whether it was a once-off or whether the person is repeatedly breaching the order.

If a person fails to comply with the rehabilitation part of the treatment order, without reasonable excuse, then the Court can do any of the following things:

• Ask the person to come to court more regularly;
• Order the person serve some community service (up to 40 hours);
• Amend the treatment order conditions;
• Impose a condition on the treatment program that the Court feels is necessary;
• Order the person to serve a short period of imprisonment under the custodial part of the sentence (up to 7 days in jail); or
• Revoke the rehabilitation part of the treatment order and require the person to serve all or part of the sentence of imprisonment imposed (minus any time served in imprisonment under the treatment order).

If a person decides they do not want to complete the treatment program, they may be sent to jail as part of their sentence.

If a person is convicted of a new offence during the operational period of their treatment order, and that offence is one where imprisonment may be imposed (which is most offences!), then the Court has a number of options as to how they proceed. They could:

• extend the operational period of the custodial part of the treatment order by up to 12 months;
• order the term of imprisonment be further suspended if the operational period has already expired;
• order that the rehabilitation part of the treatment order be revoked, If the rehabilitation part of the treatment order is still in force;
• order that the person must serve the whole or part of the sentence of imprisonment imposed under the custodial part of the treatment order, reduced by any period already served under the rehabilitation part of the treatment order.

 

For more information

If you or your family member or friend is facing criminal charges and is battling a serious drug or alcohol problem, having their matter dealt with through Brisbane’s Drug and Alcohol Court could mean that they aren’t sent to jail and that they can actually get the help they need!

Visit our Gold Coast criminal lawyers or Brisbane law office, otherwise you can call us on (07) 5532 3133 to discuss the case

 

References

[1] Magistrates Court Practice Direction No. 1 of 2018, His Honour Judge Orazio Rinaudo, 25 January 2018